This unfair labor practice case is before the Authority on exceptions
to the attached decision of the Administrative Law Judge filed by the
Respondent. The General Counsel filed an opposition to the exceptions. In
addition, in response to the Authority's request, the Respondent and the
General Counsel filed supplemental briefs addressing the applicability of
United States Department of Defense v. FLRA, U.S. ,
114 S. Ct. 1006 (1994) (Department of Defense). The General Counsel
also filed a brief concerning whether the information is necessary, within the
meaning of section 7114(b)(4) of the Statute, in response to a Federal Register
notice, 59 Fed. Reg. 63995 (1994).

The complaint alleges that the Respondent violated section 7116(a)(1),
(5), and (8) of the Federal Service Labor-Management Relations Statute
(the Statute) by refusing to furnish the Union with unsanitized copies of
performance appraisals of bargaining unit and certain non-bargaining unit
employees.(1) The Judge found that the
Respondent violated the Statute by failing to provide the Union with
unsanitized copies of the appraisals of unit employees but that the Respondent
was not obligated to provide the unsanitized appraisals of non-unit
employees.(2)

For the reasons set forth below, we find that the Respondent did not
violate the Statute because disclosure of the requested information is
prohibited by the Privacy Act, 5 U.S.C. § 552(a).(3) Therefore, we dismiss the
complaint.

II. Judge's Decision

The facts are set forth fully in the attached Judge's decision and
briefly summarized here. After several unit employees expressed dissatisfaction
with their appraisals to various Union representatives, the Union requested
that the Respondent provide unsanitized copies of all unit employees'
performance appraisals, assertedly to fulfill a wide range of representational
duties. The Respondent refused to provide the unsanitized information, absent
the written authorization of each employee.

The Judge concluded, in a decision issued prior to Department of
Defense, that the Respondent's refusal to furnish the unsanitized
performance appraisals violated the Statute. The Judge determined that
disclosure of the information was not prohibited by the Privacy Act and that
the unsanitized performance appraisals were necessary under section 7114(b)(4)
of the Statute for the Union to determine whether unit employees had been
fairly appraised and to take appropriate action, if warranted.(4)

III. Positions of the Parties

A. Respondent's Exceptions and Supplemental Submission

The Respondent excepts to the Judge's findings that the requested
information is not prohibited from disclosure by the Privacy Act. The
Respondent maintains that disclosure of the requested information is prohibited
by the Privacy Act unless the public interest served by the disclosure
outweighs the strong privacy interest that employees have in their performance
appraisals. Citing Department of Defense and United States Department
of Justice v. Reporters Committee for Freedom of the Press, 489 U.S.
749 (1989) (Reporters Committee), the Respondent asserts that the only
relevant public interest is the extent to which disclosure would contribute
significantly to the public's understanding of the Government's operations or
activities. The Respondent argues that the disclosure of the requested
information would not serve this interest. The Respondent also contends that
the employees' privacy interests in their performance appraisals are
significant, in part because appraisals may contain derogatory information or
favorable information that may embarrass an employee or incite jealousy in his
or her co-workers.

The Respondent also claims that the General Counsel failed to establish
that unsanitized information is necessary under section 7114(b)(4) of the
Statute.

B. General Counsel's Opposition and Supplemental Submissions

The General Counsel argues that Department of Defense was
limited to the disclosure of home addresses and contends that the disclosure of
home addresses involves interests that are "fundamentally different" from the
interests at issue in this case. General Counsel's Supplemental Brief
at 3. The General Counsel maintains that disclosure of unsanitized
performance appraisals serves the public interest by revealing the operations
and activities of the Government, by indicating whether an agency is treating
its employees fairly and in accordance with merit systems principles, by
facilitating the early resolution of potential grievances, and by contributing
to the proper administration of the performance appraisal system. Noting that
the Respondent's employees are engaged in rendering air traffic control
services, the General Counsel argues that matters related to the administration
of the Respondent's performance appraisal system have critical implications for
public safety. The General Counsel claims that the public interest in the
disclosure of unsanitized performance appraisal information in this case
outweighs the employees' privacy interests in non-disclosure.

The General Counsel also argues that the requested information is
necessary within the meaning of section 7114(b)(4) of the Statute. According to
the General Counsel, the Union requested the unsanitized information for
several reasons, which are supported in the record and are unrebutted by the
Respondent.

IV. Analysis and Conclusions

The central question presented in this case is whether disclosure of
the requested unsanitized employee performance appraisals is prohibited by law,
within the meaning of section 7114(b)(4) of the Statute. In asserting that
disclosure is prohibited, the Respondent relies on the Privacy Act. As noted
above, the Privacy Act generally prohibits the disclosure of records concerning
Federal employees without their consent unless, as relevant here, disclosure of
the record would be required under the FOIA. For the following reasons, we
conclude that disclosure of the requested information is not required under the
FOIA and, therefore, is prohibited by the Privacy Act. Accordingly, without
addressing whether the information is necessary, under section 7114(b)(4), we
dismiss the complaint.

The statutory right of an exclusive representative to obtain
information, which is expressed as a component of the obligation to bargain in
good faith, 5 U.S.C. § 7114(b), enables a union to engage in
collective bargaining and fulfill its role of representing bargaining unit
employees. 5 U.S.C. § 7114(a). In creating this statutory right,
it is apparent to us that Congress recognized the significance that information
plays in a union's ability to pursue the full range of its representational
responsibilities. SeegenerallyFLRA v. U.S. Department of the
Treasury, Financial Management Service, 884 F.2d 1446, 1449 (D.C. Cir.
1989) (Financial Management Service). SeealsoAmerican
Federation of Government Employees, AFL-CIO, Local 1345 v. FLRA,
793 F.2d 1360, 1363 (D.C. Cir. 1986) ("[t]he duty to request and supply
information is part and parcel of the fundamental duty to bargain"). At the
same time, however, Congress established certain constraints on the disclosure
of information, including making the prohibition contained in the Privacy Act
applicable to union requests for information under the Statute.

A. Privacy Act Principles Applicable Under the Statute

In refusing to provide the information requested by the Union in this
case, the Respondent asserts that the Privacy Act prohibits disclosure because
it is not compelled by the FOIA; in particular, the Respondent relies on the
FOIA exemption that applies to "personnel and medical files and similar files
the disclosure of which would constitute a clearly unwarranted invasion of
personal privacy[.]" 5 U.S.C. § 552(b)(6) (Exemption 6). Under
well-settled law, determining whether or not disclosure is required under this
exemption involves a balancing of the employee privacy interests that
would be jeopardized, and the public interest that would be served, by such
disclosure.(5)For example, Department
of the Air Force v. Rose, 425 U.S. 352, 372 (1976); Financial
Management Service, 884 F.2d at 1451.

With respect to employee privacy interests, the disclosure of
unsanitized performance appraisals has been the subject of considerable
litigation, wherein those interests have been described and weighed under the
FOIA. Some of these cases involved requests for information that were made
under section 7114(b)(4) of the Statute. For example, FLRA v. United
States Department of Commerce, National Oceanic and Atmospheric Administration,
National Weather Service, Silver Spring, Maryland, 962 F.2d 1055, 1060
(D.C. Cir. 1992) (Commerce); United States Department of Veterans
Affairs, Regional Office, San Diego, California, 44 FLRA 312, 314
(1992) (Department of Veterans Affairs); U.S. Department of Health
and Human Services, Social Security Administration and Social Security
Administration, Field Operations, Region II, 43 FLRA 164, 166 (1991)
(SSA Field Operations), rev'd, No. 92-1012 (D.C. Cir. Dec.
10, 1992) (percuriam, mem.). Other cases involved requests for
information that were made directly under the FOIA. For example,
Ripskis v. Department of Housing and Urban Development, 746 F.2d 1,
3 (D.C. Cir. 1984) (Ripskis); Columbia Packing Co., Inc. v. United
States Department of Agriculture, 563 F.2d 495, 498 (1st Cir. 1977)
(Columbia Packing); Church of Scientology v. Internal Revenue
Service, 816 F. Supp. 1138, 1154-56 (W.D. Tex. 1993) (Church of
Scientology); Gilbey v. Department of the Interior, 1990 WL 174889
(D.D.C. 1990) (Gilbey); Celmins v. United States Department of the
Treasury, Internal Revenue Service, 457 F. Supp. 13, 15 (D.D.C.
1977) (Celmins). All of these cases have recognized the personal nature
of performance appraisals and the substantial interest that employees have in
keeping such information private.

With respect to the public interest to be weighed, the Authority is
guided by Reporters Committee and Department of Defense. In
Department of Defense, the Supreme Court rejected the Authority's
previous approach, which defined the public interest in terms of collective
bargaining as embodied in the Statute. The Court held that the only relevant
public interest to be considered in the FOIA Exemption 6 balancing
analysis is the extent to which disclosure of the information would shed light
on the agency's performance of its statutory duties or otherwise inform
citizens as to "'what their government is up to.'" Department of
Defense, 114 S. Ct. at 1013-14 (quoting Reporters
Committee, 489 U.S. at 773). In addition, the Court stated that "all FOIA
requestors have an equal, and equally qualified, right to information[.]"
114 S. Ct. at 1014. SeealsoReporters
Committee, 489 U.S. at 771 ("the identity of the requesting party
has no bearing on the merits of his or her FOIA request").

Although the case before the Court in Department of Defense
involved only the disclosure of bargaining unit employees' home addresses, we
find no basis for determining the relevance of an asserted public interest any
differently in cases involving other information, including performance
appraisals. We note that courts reviewing claims under Exemption 6 of the FOIA
consistently have analyzed the public interest utilizing the same definition
regardless of differences in the type of information sought. CompareCommerce, 962 F.2d at 1060 (names and duty stations of unit
employees who received certain performance evaluations) withHorner, 879 F.2d at 879 (names and addresses of Federal
annuitants). Accordingly, in balancing the interests under Exemption 6, we
will in this and future cases define the public interest in disclosure of
information in terms of the extent to which disclosure of the information would
shed light on the agency's performance of its statutory duties or otherwise
inform citizens as to what their Government "is up to." Reporters
Committee, 489 U.S. at 773.(6)

We adopt this definition of public interest because we conclude that
Department of Defense requires this result for all cases involving the
FOIA, including those that have their genesis in a request pursuant to section
7114(b)(4) of the Statute. In so doing, however, we acknowledge that applying
such a "restrictive definition of the 'public interest in disclosure,'"
Department of Defense, 114 S. Ct. at 1017 (Justice Ginsburg,
concurring), will often deny to Federal sector unions "information their
private-sector counterparts routinely receive[,]" id. at 1018. We
believe that this result does not serve the public interest in promoting
Federal sector collective bargaining identified by Congress in section 7101 of
the Statute. The ability to exchange information is central to the
labor-management relationship. Moreover, the open sharing of information is
crucial to the efforts of Federal labor organizations and management to forge
constructive collaborative relationships. See National Partnership
Council Report to the President, dated January 31, 1994, at 7. Therefore, we
encourage labor and management, insofar as legally possible, to accommodate
both the privacy interests of employees and their exclusive representatives'
acknowledged need for meaningful information. In addition, we recognize that
"Congress may correct the disparity [in information disclosable to private
sector and Federal sector unions]." Department of Defense, 114 S.
Ct. at 1016.

In analyzing cases under the FOIA, it is evident that an agency
asserting the Privacy Act as a bar to disclosure is in the best position to
articulate the privacy interests of its employees and also to come forward with
information that records sought are contained in a system of records.
See, for example, Vaughn v. Rosen, 484 F.2d 820,
823-24 (D.C. Cir. 1973). This is consistent with the FOIA's requirement that an
agency seeking to withhold records must sustain its action. 5 U.S.C.
§ 552(a)(4)(B). We find that it is appropriate to apply such a
requirement to requests under the Statute. SeegenerallyFinancial Management Service, 884 F.2d at 1457 (Ginsburg,
R.B., concurring, noting that section 7114(b)(4) "picks up" the Privacy Act,
including the FOIA, "unmodified"). Accordingly, we conclude that in cases where
an agency defends a refusal to furnish requested information on the basis that
disclosure is prohibited by the Privacy Act because it would result in a
clearly unwarranted invasion of personal privacy within the meaning of FOIA
Exemption 6, the agency bears the burden of demonstrating: (1) that the
information requested is contained in a "system of records" under the Privacy
Act; (2) that disclosure of the information would implicate employee
privacy interests; and (3) the nature and significance of those privacy
interests. If the agency makes the requisite showings, the burden shifts to the
General Counsel to: (1) identify a public interest that is cognizable
under the FOIA; and (2) demonstrate how disclosure of the requested
information will serve that public interest.(7) Although the parties bear the burdens set forth above, we
will, where appropriate, consider matters that are otherwise apparent.

Once the respective interests have been articulated, we will, as we
have in the past, balance the privacy interests against the public interest.
For example, Veterans Administration Medical Center, Jackson,
Mississippi and National Federation of Federal Employees, Local 589,
32 FLRA 133, 138 (1988) ("We find that the balancing of interests which is
required under the FOIA is appropriate under the Statute."). In striking this
balance, we must be mindful that the "clearly unwarranted" language in
Exemption 6 weights the scales in favor of disclosure. Ripskis,
746 F.2d at 3. At the same time, however, the strength of the privacy
interests may not be diminished by a requesting party's assurance that
information will not be disseminated or made publicly available because every
requester must be treated the same. SeeDepartment of Defense,
discussed above in section A of our analysis.(8) If the privacy interests outweigh the public interest, we
will conclude that disclosure of the information would constitute a clearly
unwarranted invasion of personal privacy under Exemption 6 of the FOIA
and, as a result, that disclosure is prohibited by the Privacy Act. In such a
case, disclosure is prohibited by law, within the meaning of section 7114(b)(4)
of the Statute, and the agency is not required to furnish the information
unless, of course, disclosure is permitted under another exception to the
Privacy Act. On the other hand, if the public interest outweighs the privacy
interests, disclosure is not prohibited by the Privacy Act under section
7114(b)(4).

C. Application of the Framework

In the case before us, the Respondent does not address whether the
requested performance appraisals are contained in a system of records;
nevertheless, it is apparent that they are. Section 2429.5 of the Authority's
Rules and Regulations permits us to "take official notice of such matters as
would be proper." 5 C.F.R. § 2429.5. The Authority has found
that performance appraisals of Federal employees are contained in a system of
records. SeeSSA Field Operations, 43 FLRA
at 168-69, rev'd as to other matters,
No. 92-1012 (D.C. Cir. 1992). We find that it is proper to take official
notice of that fact here.

In assessing the privacy interests identified by the Respondent, we are
guided by the substantial body of law that has been developed, both by the
Federal courts and by the Authority. See section A of our analysis.
Consistent with this precedent, it is clear that bargaining unit employees have
significant privacy interests in information that reveals supervisory
assessments of their work performance. As the Supreme Court has observed,
"Congress' primary purpose in enacting Exemption 6 was to protect
individuals from the injury and embarrassment that can result from the
unnecessary disclosure of personal information." United States Department of
State v. Washington Post Co., 456 U.S. 595, 599 (1982). That privacy
interest may be heightened with respect to derogatory information in an
appraisal, Gilbey, but it also extends to disclosure of favorable
information that might embarrass an individual or incite jealousy in his or her
co-workers. See, for example, Commerce, 962 F.2d
at 1059; Ripskis, 746 F.2d at 3.

Specifically, unsanitized performance appraisals reveal details of
supervisory assessment of individual work performance and, as such, are likely
to contain information that is highly sensitive to employees, which employees
may wish to keep confidential. SeeStern v. Federal Bureau of
Investigation, 737 F.2d 84, 91 (D.C. Cir. 1984) (addressing employee
privacy interest in "diverse bits and pieces of information, both positive and
negative, that the government, acting as an employer, has obtained and kept in
the employee's personnel file"). We note that unsanitized performance
appraisals rarely have been subject to disclosure by courts because of the
strong privacy interests of the affected employees. CompareCommerce, 962 F.2d at 1060; Ripskis, 746 F.2d
at 3-4; Gilbey; and Church of Scientology,
816 F. Supp. at 1156 withColumbia Packing and
Celmins. Indeed, we are unaware of any judicial precedent issued
subsequent to Reporters Committee in which disclosure of unsanitized
employee performance appraisals was mandated under Exemption 6.

With respect to the public interest asserted by the General Counsel, we
similarly are guided by precedent recognizing that the public is served if the
Respondent carries out its personnel functions fairly, equitably, and in
accordance with laws, rules and regulations,(9)Commerce, 962 F.2d at 1060; Ripskis,
746 F.2d at 3; Core v. United States Postal Service,
730 F.2d 946, 948 (4th Cir. 1984) (Core), and otherwise fulfills
its statutory and regulatory obligations. The Respondent is engaged in air
traffic control activities, which clearly affect aviation safety for the
general public. Disclosure of unsanitized performance appraisals would shed
light on the ability of employees to perform their air traffic control duties
and on the manner in which those duties are performed, which furthers the
public interest in knowing how "public servants" are carrying out their
Government functions. NLRB v. Robbins Tire and Rubber Co., 437 U.S.
214, 242 (1978) (a basic purpose of the FOIA is to ensure an informed citizenry
needed to "hold the governors accountable to the governed").

However, we find, contrary to some of our previous decisions, that the
early resolution of grievances is not an appropriate consideration in defining
the public interest under FOIA Exemption 6. We reach this result because,
pursuant to the principles established in Department of Defense, the
early resolution of grievances does not, in and of itself, shed light on an
agency's performance of its statutory duties or otherwise inform citizens as to
what their Government is up to. Rather, the potential for early grievance
resolution arises out of the collective bargaining relationship under the
Statute, which, consistent with Department of Defense, is not relevant
for purposes of defining the public interest under Exemption 6 of the FOIA.
Thus, in Commerce, the court concluded that "[b]y crediting early
resolution of potential union grievances, . . . the Authority
improperly loaded the public interest side of the exemption 6 balance with
collective bargaining values." 962 F.2d at 1060. Moreover, as the
identity of the requester is irrelevant for purposes of analysis under the
FOIA, the fact that the Union might use the appraisals to foster the resolution
of grievances is of no consequence if it cannot be shown that public access to
such information would have a similar result. Accordingly, to the extent that
our prior decisions found that the early resolution of grievances is a public
interest within the meaning of FOIA Exemption 6, we will no longer follow
such precedent.(10)For example, Department of Veterans Affairs,
44 FLRA at 317; SSA Field Operations, 43 FLRA
at 168.(11)

Further, our review of the record leads us to conclude
that the public interest articulated by the General Counsel and cognizable
under Exemption 6 of the FOIA would not be enhanced by the disclosure of
appraisals that include names and other identifiers. SeeRipskis,
746 F.2d at 3-4. Cf.United States Department of State v.
Ray, U.S. , 112 S. Ct. 541, 549 (1991) (public
interest found to have been adequately served by disclosure of redacted
documents); Norwood v. Federal Aviation Administration, 993 F.2d
570 (6th Cir. 1993) (disclosure of documents pertaining to settlement
offers of reinstatement to fired air traffic controllers, redacted of
identifiers, found to serve the public interest). We note, in this connection,
the Respondent's assertion that it had offered to provide sanitized appraisals
to the Union. Respondent's Supplemental Brief at 7. Although disclosure of the
unsanitized appraisals might assist the Union in performing its
representational functions, it is clear, as discussed above, that this interest
is specific to the Union and, as such, may not be considered in assessing the
public interest under Exemption 6. The General Counsel has not established that
the disclosure of employees' names, theprecise part of the
requested information that implicates employee privacy interests, enhances the
public interest in performance appraisals that has been established.

Finally, it appears that disclosure of the requested unsanitized
performance appraisals may have adverse consequences. For example, disclosure
might "spur unhealthy comparisons" among employees and, thereby, "breed discord
in the workplace." Ripskis, 746 F.2d at 3. In addition,
disclosure could "chill candor in the evaluation
process . . . ." Id. That is, supervisors might
withhold comments, both positive and negative, from inclusion in appraisals if
they were aware that their comments could become known. SeeGilbey, 1990 WL 174889, slip op. at 2 ("Evaluators who know that
their comments may be viewed by members of the general public or become the
subject of workplace gossip will, consciously or subconsciously, assess more
guardedly and less frankly."). Appraisals that are not forthright provide less
guidance to employees in terms of job performance and, as a result, provide
less helpful feedback to employees who wish to maintain or improve their levels
of performance.

Based on the foregoing, and in view of the substantial
judicial precedent holding that similar documents are not mandatorily
disclosable, we conclude that, on balance, the public interest that would be
served by disclosing the requested unsanitized performance appraisals in this
case is outweighed by the substantial invasion of employee privacy that would
result.(12) Accordingly, we find that disclosure of the unsanitized
appraisals would constitute a clearly unwarranted invasion of personal privacy
within the meaning of FOIA Exemption 6. See, for example,
Commerce, 962 F.2d at 1060; Ripskis, 746 F.2d
at 3-4; Core, 730 F.2d at 948-49.

As no other exceptions to the Privacy Act are alleged to apply to this
case, we find that disclosure of the requested information is prohibited by
law. Therefore, the Respondent is not obligated to provide the Union with the
requested information under section 7114(b)(4) of the Statute and its failure
to do so is not a violation of the Statute.

V. Order

The complaint is dismissed.

OFFICE OF ADMINISTRATIVE LAW JUDGES

FEDERAL AVIATION ADMINISTRATION,
NEW YORK TRACON, WESTBURY,
NEW YORK
Respondent

and

NATIONAL AIR TRAFFIC CONTROLLERS
ASSOCIATION, MEBA/NMU (AFL-CIO),
NEW YORK TRACON LOCAL
Charging Party

Case Nos. BY-CA-21180
BY-CA-21233

Joseph C. Winkler, Esq.
For the Respondent

Daniel F. Sutton, Esq. and
Carol Walter Pope, Esq.
For the General Counsel

Joseph S. Fruscella
For the Charging Party

Before: SALVATORE J. ARRIGO
Administrative Law Judge

DECISION

Statement of the Case

This matter arose under the Federal Service Labor-Management Relations
Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. § 7101, etseq. (herein the Statute).

Upon unfair labor practice charges having been filed by the captioned
Charging Party (herein the Union) against the captioned Respondent, the
General Counsel of the Federal Labor Relations Authority (herein the
Authority), by the Regional Director for the Boston Regional Office, issued
a Complaint and Notice of Hearing alleging Respondent violated the Statute
by refusing to furnish the Union with unsanitized copies of the requested
performance appraisals of bargaining unit employees and certain non-unit
employees. A hearing on the Complaint was conducted in New York, New York
at which all parties were afforded full opportunity to adduce evidence,
call, examine and cross-examine witnesses and argue orally. Briefs were
filed by Respondent and the General Counsel and have been carefully
considered.

Upon the entire record in this matter, my observation of the witnesses
and their demeanor and from my evaluation of the evidence, I make the
following:

Findings of Fact

At all times material the National Air Traffic Controllers Association
(NATCA) has been the exclusive collective bargaining representative of a
nationwide consolidated unit of air traffic controllers and the Union has
been the agent of NATCA for representing unit employees at Respondent's New
York TRACON facility in Westbury, New York. The annual appraisal period for
the approximately 200 bargaining unit employees at the New York TRACON
facility extends from April 1 to the following March 31. After the
appraisal period ended on March 31, 1992, approximately 15 to 20 unit
employees expressed dissatisfaction to various Union representatives
regarding their appraisals. Some employees complained they felt a number of
supervisors discriminated against those employees who filed grievances and
some employees complained they were not treated fairly because some
supervisors favored employees with whom they had personal friendships or
associated with during social or sporting functions. Various awards were
related to the performance appraisals employees received.

Three of the complaints made by employees were resolved using an
informal procedure established under the parties' collective bargaining
agreement. The Union proceeded with investigating the remaining complaints
and on May 4, 1992 Union President Joseph Fruscella sent Respondent the
following letter:

I am requesting that the following information be delivered to me
within seven (7) calendar days as it is necessary for the full and
proper discussion, understanding and negotiation of subjects within the
scope of collective bargaining, and is normally maintained and
reasonably available by the Agency, in the regular course of business.
This request is made in accordance with 5 U.S.C. chapter 71 of the
Federal Service Labor-Management Relations Statute, Title 5, Subchapter
II, 7114, b, (4), (A), (B), (C).

1. An unsanitized copy of all bargaining unit members' performance
appraisals for the rating period of April 1, 1991 through March 31,
1992.

Please be advised that NATCA reserves the right to grieve this matter
upon review of the requested information. . .

On May 15, 1992 Respondent replied to the Union:

This is in response to the subject request.

Copies of employee performance appraisals are protected from
disclosure by Order 1280.1, Protecting Privacy of Information About
Individuals. The release of this information requires the prior written
request of the individuals to whom the records pertain.

Additionally, I request that you provide sufficient information to
clarify the purpose of your request. The necessity for and the relevancy
of the information must be established prior to its release.

The Union responded on June 15, 1992 specifying it was seeking
unsanitized copies of performance appraisals for New York TRACON
bargaining unit employees and listed the following reasons for its prior
request:

1. To insure that all supervisors apply the performance standards to
all employees in the same manner.

2. To insure that there are no predetermined levels of performance
(i.e. bell-shaped curve reflecting fully successful, exceptional and
outstanding ratings).

3. To insure that those employees who do not perform On-the-Job
Training under CJE #3 have an equal chance of being rated above fully
successful as those employees who do perform OJT.

4. To insure that flight assists, letters of appreciation and
commendation, and OJT are reflected equitably on all PER's.

5. To insure that tape talks are not included in PER's.

6. To insure that union officials are not being given disparate
treatment because of union activity.

7. To insure that bargaining unit members are not being given
disparate treatment because of exercising their rights under the law.

8. To insure that procedural aspects of the performance appraisal
process are being adhered to (i.e. beginning of appraisal discussion,
midterm discussion, etc. . .).

On June 17, 1992, after acknowledging that the Union's June 15 letter
was responsive to its request that it clarify why it required unsanitized
appraisals of bargaining unit employees, Respondent nevertheless refused to
furnish the data, contending that ". . . the employees' right to
control the release of information relative to performance is paramount.
The release of this information must be contingent upon the written
authorization of each employee included in this request."

On June 24, 1992 the Union sent Respondent a request similar to its May
4 correspondence, this time requesting unsanitized copies of the
performance appraisals for the same period of all Traffic Management Unit
employees' who were under the same Performance Management System as the
unit employees. Approximately 11 non-unit employees are employed as traffic
management coordinators assigned to the Traffic Management Unit at the New
York TRACON. Traffic management coordinators are non-supervisory employees
who work in the same GS-2152 position series as bargaining unit employees.
These employees control the flow of traffic in and out of the New York
metropolitan area and coordinate with the traffic centers adjacent to the
New York TRACON. Full performance level traffic management coordinators and
full performance level air traffic controllers work at the GS-14 grade
level. Traffic management coordinators work approximately 16 hours per
month performing similar air traffic control functions as bargaining unit
employees to maintain position proficiency. From a review of their
performance appraisal forms, traffic management coordinators and air
traffic controllers have substantially different performance standards as
to two of the three job elements on which they are appraised. As to the
third job element, "Training", the performance standards are
essentially identical. However, Training is given a 25 percent weight
for controllers and 20 percent for traffic management coordinators.

The Union followed-up its June 24 request with a letter clarifying the
reasons why it wished the performance appraisals for non-unit employees as
follows:

1. To ensure that the performance appraisals of bargaining unit
employees and non-bargaining unit employees are done in an objective
manner with objective documentation and in accordance with FAA
procedures.

2. To investigate a grievance into disparate treatment of bargaining
unit and non-bargaining unit employees.

3. To determine if bargaining unit employees and non-bargaining unit
employees are given the same treatment with respect to operational
errors, flight assists, on the job training, controller in charge
duties, and letters of commendation.

4. To ensure that tape talks which are not supposed to be included on
the performance appraisals are handled in the same manner for both group
of employees.

5. To determine how employees whose jobs have moved in and out of the
bargaining unit are treated.

6. To ensure that the Traffic Management Coordinators who perform air
traffic work are evaluated as are the others who perform air traffic
work.

Respondent replied to the Union's request for non-unit employees'
performance appraisals on July 7, 1992 by informing the Union that agency
policy was consistent with the Privacy Act and all requests for unsanitized
performance appraisals would be denied.

Respondent never provided the Union with any of the information it had
requested.

Additional Findings, Discussion and Conclusions

Under section 7114(b)(4) of the Statute an agency must furnish the
exclusive representative, upon request and to the extent not prohibited by
law, data:

"(A) which is normally maintained by the agency in the regular
course of business;

"(B) which is reasonably available and necessary for full and
proper discussion, understanding, and negotiation of subjects within the
scope of collective bargaining; and

"(C) which does not constitute guidance, advice, counsel, or
training provided for management officials or supervisors, relating to
collective bargaining . . ."

Counsel for the General Counsel contends the Union's request for
unsanitized performance appraisals of both unit and non-unit employees,
above, fully met the requirements of section 7114(b)(4) of the Statute and
accordingly, Respondent's refusal to furnish the information violated
section 7116(a)(1), (5) and (8) of the Statute.

Counsel for Respondent acknowledges the requested data is normally
maintained by the Agency, is reasonably available within the meaning of
section 7114(b)(4)(B) of the Statute, and does not constitute guidance,
advice, etc., within the meaning of section 7114(b)(4)(C). However,
Respondent in its brief takes the position that the data requested by the
Union was not necessary within the meaning of the Statute,
(1)
and further that under Exemption 6 of the Freedom of Information Act (FOIA), 5 U.S.C. §
552, Respondent was privileged to withhold the information requested.

The Authority has long held that an agency must provide information to a
union which would enable it to carry out the full range of its
representational functions and responsibilities, including furnishing
information necessary for a union to process a grievance or monitor the
performance appraisal system. Federal Aviation Administration, Aviation
Standards National Field Office, Mike Monroney Aeronautical Center,
Oklahoma City, Oklahoma, 43 FLRA 1221, 1226-1227 (1992) and cases cited
therein including U.S. Department of Commerce, National Oceanic and
Atmospheric Administration, National Weather Service, Silver Spring,
Maryland, (National Weather Service), 38 FLRA 120, 130-131 (1990), enforcement
denied sub nom. FLRA v. U.S. Department of Commerce, National Oceanic and
Atmospheric Administration, National Weather Service, Silver Spring,
Maryland, 962 F.2d 1055 (D.C. Cir. 1992). The Authority has
specifically required that unsanitized performance appraisals of bargaining
unit employees be provided the exclusive representative since such
information requested was found to be necessary for the full and proper
discussion, understanding, and negotiation of subjects within the scope of
collective bargaining. U.S. Department of Health and Human Services,
Social Security Administration and Social Security Administration Field
Operations, Region II, 43 FLRA 164 (1991) (Social Security and Field
Operations Region II), rev'd. U.S. Department of Health and
Human Services, Social Security Administration Field Operations, Region II
v. FLRA, No. 92-1012 (D.C. Cir. Dec. 10, 1992). Information concerning
non-bargaining unit employees may also be required to be provided a union
where necessary under section 7114(b)(4) of the Statute to fulfill its
representational responsibilities such as investigating whether grounds for
a grievance exist. Department of Health and Human Services, Social
Security Administration, Region X, Seattle, Washington, 39 FLRA 298,
307-309 (1991). Indeed, the information concerning non-bargaining unit
employees may be required to be provided, in certain circumstances, in an
unsanitized form. SeeU.S. Department of Justice and Immigration
and Naturalization Service, 37 FLRA 1346, 1360-1366 (1990).

In the case herein the Union was seeking unsanitized performance
appraisals for bargaining unit employees and a limited number of non-unit
employees whose duties were closely related to unit employees and who had
some functions the same as unit employees. The Union clearly explicated its
need for the information and delineated precisely how it would be used, as
fully set forth above. Further, Union President Fruscella testified he was
informed through rumors, which were later confirmed by the Division
Manager, that Supervisors were instructed appraisals should be given in
such a way as to result in 10 percent of the employees receiving
outstanding ratings, 30 percent receiving exceptional ratings and the
remaining employees falling into the fully successful level, thus the
distribution of appraisals statistically being reflected as a "bell
shaped curve."
(2)
Fruscella also testified he had been
"notified" that all Traffic Management employees received an
exceptional or outstanding appraisal leading to a monetary award, while
only 56 percent of the unit employees received a monetary award. In
addition, Fruscella testified controller trainees are frequently told by
supervisors that following Agency policy, they would have received a higher
appraisal except that they were in trainee status, regardless of their
actual proficiency, but such "policy" is not applied to Traffic
Management employees. With regard to why it was necessary to receive the
requested information in unsanitized form, Fruscella testified he needed
each unit employee's appraisal identified in order to compare grievants'
appraisals with those who did not previously file grievances to ascertain
whether grievants were receiving disparate treatment; to ascertain that
letters of appreciation and commendation issued by management to an
employee, copies of which the Union receives, are reflected equitably on
all applicable appraisals; and to independently verify that the procedural
aspects of the performance appraisal process, as it applies to each unit
employee, were being followed.

It is clear from the foregoing that the information requested by the
Union was for the purposes set forth above and essentially to determine
whether unit employees were fairly appraised and obviously take appropriate
grievance action if necessary. The information sought in an unsanitized
form was directly related to this objective. In these circumstances I
conclude the unsanitized information sought for unit employees was
necessary, within the meaning of section 7114(b)(4), for the Union to carry
out its responsibilities under the Statute.

However, neither Fruscella's testimony nor the record provide support as
to why information regarding non-unit employees would not have been
satisfactory for the Union's purposes if supplied, at least at first, with
personal identifiers deleted. In my view, if a review of a particular
appraisal gave rise to a question relevant to the Union's performing its
representational role, the identity of the individual appraised could then
be sought. Accordingly, as to the request for unsanitized performance
appraisals of non-unit employees, I conclude the record does not support a
finding that such data was necessary within the meaning of section
7114(b)(4) of the Statute.

With regard to Respondent's defense that it was prohibited by law from
supplying the Union with the documents it sought, Respondent contends
disclosure of the documents is prohibited by the Privacy Act, 5 U.S.C. §
552a, recognizing that Privacy Act application is affected by the Freedom
of Information Act (FOIA), 5 U.S.C. § 552. The Privacy Act generally
prohibits disclosure of personal information about Federal Employees
without their consent. However, the Privacy Act is not applicable if
disclosure is required by the FOIA, which requires the disclosure of
information unless it falls within one of its enumerated exceptions.
Exemption (b)(6) of the FOIA provides that information concerning an
employee contained in personnel files may be withheld from disclosure if
disclosure would constitute a "clearly unwarranted invasion of
personal privacy." Determining whether such an invasion of personal
privacy would occur requires balancing the employees' right to privacy
against the public interest in disclosure. SeeU.S. Department of
Labor, Washington, D.C., 39 FLRA 531, 539 (1991) and cases cited
therein. The Statutory public interest in disclosure to a union has been
held by the Authority to be "the facilitation of the collective
bargaining process in the federal sector." U.S. Department of the
Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 37 FLRA 515, 531 (1991), enforcement denied sub nom. FLRA v. U.S.
Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New
Hampshire, 941 F.2d 49 (1st Cir. 1991).

The public interest in disclosure of the requested appraisals herein
was, as discussed above, to facilitate the Union's performance of its
Statutory representational duty by obtaining information, necessary within
the meaning of section 7114(b)(4) of the Statute, to take appropriate
action if unfair or disparate treatment of unit employees was disclosed. Seeid. at 530-531. In addition, disclosure of the information would
further the public interest in assuring that the Agency administered its
evaluation program in a fair and consistent manner. SeePatent
Office Professional Association and Department of Commerce, Patent and
Trademark Office, 39 FLRA 783, 816 (1991).
(3)

On the other hand, employees clearly have significant privacy interests
in information contained in their performance appraisals. SeeSocial
Security and Field Operations Region II, at 167 and cases cited
therein. However, there is no indication that the Union herein will use or
make available the information sought for purposes other than that for
which it was requested, id., or that the information might be used
to embarrass employees. Id. and seeUnited States
Department of Veterans Affairs Regional Office, San Diego, California, 44 FLRA 312, 316.

Balancing the employees' significant privacy interests in their
performance appraisals against the public interest inherent in the Union's
discharge of its obligations under the Statute to monitor and administer
the collective bargaining agreement, including the grievance/arbitration
provision of that agreement, I conclude the Union's public interest
outweighs unit employees' personal privacy interests against disclosure of
their performance appraisals to the Union. Id. Accordingly, in view
of the entire foregoing and the record herein I conclude Respondent's
refusal to furnish the Union with the unsanitized performance appraisals of
controllers it requested, supra, violated section 7116(a)(1), (5)
and (8) of the Statute and I recommend the Authority issue the following:

ORDER

Pursuant to section 2423.29 of the Federal Labor Relations Authority's
Rules and Regulations and section 7118 of the Statute, it is hereby ordered
that the Federal Aviation Administration, New York TRACON, Westbury, New
York shall:

1. Cease and desist from:

(a) Failing and refusing to furnish unsanitized copies of performance
appraisals of bargaining unit employees as requested in letters dated May
4, 1992 and June 15, 1992 by the National Air Traffic Controllers
Association, MEBA/NMU (AFL-CIO), New York TRACON Local, the agent of the
exclusive representative of certain of its employees.

(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of rights assured by the Federal
Service Labor-Management Relations Statute.

2. Take the following affirmative action in order to effectuate the
purposes and policies of the Federal Service Labor-Management Relations
Statute:

(a) Upon request, furnish unsanitized copies of performance appraisals
of bargaining unit employees as requested in letters dated May 4, 1992 and
June 15, 1992 by the National Air Traffic Controllers Association, MEBA/NMU
(AFL-CIO), New York TRACON Local, the agent of the exclusive
representative of certain of its employees.

(b) Post at its facilities in the New York TRACON, Westbury, New York
copies of the attached Notice on forms to be furnished by the Federal Labor
Relations Authority. Upon receipt of such forms, they shall be signed by
the Division Manager, New York TRACON and shall be posted and maintained
for 60 consecutive days thereafter, in conspicuous places, including all
bulletin boards and other places where notices to employees are customarily
posted. Reasonable steps shall be taken to insure that such Notices are not
altered, defaced, or covered by any other material.

(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director of the Boston Regional Office,
Federal Labor Relations Authority, in writing, within 30 days from the date
of this ORDER, as to what steps have been taken to comply herewith.

Issued, Washington, DC, September 23, 1993

______________________________

SALVATORE J. ARRIGO

Administrative Law Judge

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT fail and refuse to furnish unsanitized copies of performance
appraisals of bargaining unit employees as requested in letters dated May
4, 1992 and June 15, 1992 by the National Air Traffic Controllers
Association, MEBA/NMU (AFL-CIO), New York TRACON Local, the agent of the
exclusive representative of certain of our employees.

WE WILL NOT in any like or related manner, interfere with, restrain, or
coerce our employees in the exercise of their rights assured by the Federal
Service Labor-Management Relations Statute.

WE WILL upon request, furnish unsanitized copies of performance
appraisals of bargaining unit employees as requested in letters dated May
4, 1992 and June 15, 1992 by the National Air Traffic Controllers
Association, MEBA/NMU (AFL-CIO), New York TRACON Local, the agent of the
exclusive representative of certain of our employees.

(Activity)

Date: By:

(Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of
posting and must not be altered, defaced or covered by any other material.

If employees have any questions concerning this Notice or compliance
with any of its provisions, they may communicate directly with the Regional
Director, Boston Region, Federal Labor Relations Authority, and whose
address is: 99 Summer Street, Suite 1500, Boston, MA 02110-1200 and whose
telephone number is: (617) 424-5730.

AUTHORITY FOOTNOTES:(If blank, the decision does not
have footnotes.)

1. The unit employees are air traffic
controllers; the non-unit employees are nonsupervisory traffic management
coordinators who work in the same position classification series as the unit
employees.

2. There was no exception to the
Judge's findings and conclusions regarding the performance appraisals of
non-unit employees. Accordingly, we will not address that issue.

3. The Privacy Act regulates the
disclosure of any information contained in an agency "record" within a "system
of records," as those terms are defined in the Privacy Act, that is retrieved
by reference to an individual's name or some other personal identifier.
5 U.S.C. § 552a(a)(4), (5). With certain enumerated exceptions,
the Privacy Act prohibits the disclosure of personal information about Federal
employees without their consent. Section (b)(2) of the Privacy Act provides
that the prohibition against disclosure is not applicable if disclosure of the
requested information would be required under the Freedom of Information Act,
5 U.S.C. § 552 (FOIA). Exemption (b)(6) of the FOIA provides, in
turn, that information contained in "personnel and medical files and similar
files" may be withheld if disclosure of the information would result in a
"clearly unwarranted invasion of personal privacy[.]" 5 U.S.C.
§ 552(b)(6). If such an invasion would result, then disclosure is not
required by the FOIA. In addition to the exception relating to the FOIA, other
exceptions to the Privacy Act may permit disclosure of requested information.
However, no other exceptions are asserted to apply in this case.

4. The Judge noted that the Respondent
did not dispute the General Counsel's assertion that the information is
normally maintained by the Respondent, is reasonably available, and does not
constitute guidance, advice, counsel, or training for management officials
within the meaning of section 7114(b)(4)(C) of the Statute.

5. Of course, if it is determined that
disclosure would implicate no privacy interests, the Privacy Act would not
apply and no further analysis under that statute would be necessary. For
example, National Association of Retired Federal Employees v.
Horner, 879 F.2d 873, 874 (D.C. Cir. 1989), cert.denied, 494 U.S. 1078 (1990) (Horner).

6. As a result, we will no longer
follow the analysis in prior Authority decisions that defined the public
interest to be weighed under the FOIA in terms of collective bargaining as
embodied in the Statute. For example, U.S. Department of
Transportation, Washington, D.C., 47 FLRA 110, 126 (1993)
(Department of Transportation); U.S. Department of Transportation,
Federal Aviation Administration, 46 FLRA 1475, 1485-86 (1993);
National Federation of Federal Employees, Local 1482 and U.S.
Department of Defense, Defense Mapping Agency, Hydrographic/Topographic Center,
Louisville Office, Louisville, Kentucky, 45 FLRA 1346, 1352 (1992)
(Defense Mapping Agency); Department of Veterans Affairs,
44 FLRA at 314-15; U.S. Department of Transportation, Feder